## TRI~~:ATTORNE-YGEJUERAL

OFTEXAS

PRICE DANIEL ATTORNEY

GENERAL AUSTIN 11. TEXAS

March 14, 1949 '

Hon. D. D. Williams County Attorney ThrockmortonCounty Throckmorton,Texas

Dear Sir: opinionNO. V-785

Re: The legality of employing the wife of a county commissioner

as the county home demonstration agent.

You request an opinion from the Attorney General upon the above subjeotmatter.

.Your fact situation,briefly stated is that the present County Home Demonstration Agent for Throokmorton County has held that position since 1947. At the January term, 1949, the Commissioners* Court made the following order:

"It ,is ordered by the Commissioners* Court of Throolanorton County that the sum of Eleven Hundred and Forty Dollars ($l,l40.00) be appropriatedan8 the same is hereby appropriatedout of the funds of the county to be used as a part of salary of a Home Demonstration Agent, to be assigned to work in this county by the extension service of the Agriculturaland Meohanioal College of Texas.

. . .*

The lady holdings

this position is now engaged to marry one of the County Commissioners. Upon this. fact basis you submit the followingquestions:

"1. Will the marriage of the Home DemonstrationAgent and the County Commissioner of ThrookmortonCounty cause her to become ineligibleto hold her pbsition immediately upon marriage under the 'Nepotism' Statute, ,Art.432 of the Penal Code of Texas?
"2. If such marriage does not cause her to become ineligiblbduring the year, 1949, will it render her ineligiblefor subsequent years while her future husband is'Hon.D. D. Williams - Page 2 (V-785)

County Commissionerof Throokmorton Texas." county,

Article 432 of the Penal Code of Teus - the Nepotism Statute - is in part as followsr

"No offloor of this St&o or any of* ficer of any.

. , oounty, ,i'.judge l'f Ony court,

. , ,shall~OppOint,or vote ror, er ~oonflrmthe a

RP ointment to any efrloe; position,clerks p, employmentor duty, of any person relatedwithin the sesond degree by oirinity

### or within the third dogror by consanguinity

to the person'80 ap@ntlng
or se voting, or to any other aember of any l rh board, . , ,or

oourt ore

ahioh suah psr-~ 801~ 80 .appointing

or ntlrg nay be o member, when the salary f,oes or 

### l aponsation Of suoh a point00 1s to {O pOfa 

### ror aireotly
or lna reotly E outof or 

### rrom p&o runas or roe0 or od1o.o or any kind or ohoroator whatdOOvOrl.~
Artiole 433 or the Codo dorlaros:

"No ofrioor l

r other prrson inOiuaOd within the ttilrd

procoding art1010 (432) rhall approvo any 

### l ooount or (row 

### or 'authsrlzi the dkawing of any *arrant or order to pey any salary ree or.~oompensation or, snoh lnoligibleof&Or or person,~ knowing hlmta, be so lnellglblor"

We shall first gofioo a quostion.,of kinship under the Nopotisn‘Statute not hithertodeeidea by any ~'~ eotirt ln'this State so rar as 179are l drised that is, whethor tho husband and wife are related in the prohi-, bited a0grOO or thr Statuto.

Wo'ossu&~of cour8o) t&t ths Comm%srlonor and the Agont ore not ,relatad by oensanguinity (blood). hit romaln,s

only to oonsiderwhether they.are related by 

### l rriaity (m0rriOgOI.

Under the rule in this Stato'awirets blood relotivosare the husband'saffinity relafivor.,~. Dpoa .' the marriage 0r your County Caarissloner~ and strationAgent the bload rolatlvos of the iFtiE?-
beoora tho 

# l

f&ity rolatiros of the Sari88 onor. "f: TktRon. D. D,, Williams - Page 3 (v-783)

is to say, her father,mother, brother, sister, son, end daughteswould be related to him by~affinitywithin the first degrso, and her grandfather,grandmother, uncle, aunt, first oousin, nephew, nleoo, grandson, and granddaughter

would be related to the Commissioner by affinitywithin the seoond do&roe,

Under the letter of tti.ruleobtaining in this State as to kinship by affinity, it is obvious that
a man's wife would not be related to him at all for it is only "her kin by consanguinity or blood" that beoomes her husband'skin by affinity. However,when the statute of Nepotism is construedaocording to its purpose and intention, it is obvious it should.beconstrued to apply to the relation of husband and wife, for such relation is closer than the forbidden relations of her blood kin above enumerated. The evil seught to be remediedwouldbe in-' finitelymare obvious if anoffiesr were to appoint his wife than if he were'to~appoint her brother, sister, father, unale, nioos or.oousin. We need not to determine whether the Ponal.Statute (A&:437, P.C-.) would be applied for a violation of the statute,beoause,Article 432 in EtrriTSLStiVO

terms for.bids

sueh employment,

which is thereforeunUufu1, whether the same be punishable oriminally or not,

It has been held in former opinions that; under the Nepotism ntatutes,a husband aoald not so appoint his wife. OpinionV-3S9; OpilItiOll 0-3X.

We now considerwhether or not a demonstration agent holds a nposltionv with the oounty forbiddenby the Nepotism Statute.

Article 164 of the Revised Civil Statutes is the authority for our cooperativedemonstration work in agricultureand home economics, It rsaas:

"The Commissioder~s Court of any oounty of this State is authorizedto establishand' oonauot eo-operativedemonstration work in agricultureand home eoonomlos in oo-operation with the Agrioulturaland Mechanical College of Texas, upon such terms and oonaitione as may be agreed upon by the Gommiseioners' Court and the agents of the Agrioultural an~d YeohanicaiUollege of Texasi and may smploy such means, and may appropriate' and 8xpend such sums of money as may be neoessary toHon. D. D. Williams - Page 4 (V-785)

effeotivelyestablishand carry on such demonstration

work in agricultureand home eoonomios in their respectivecounties."

While the demonstration work,is a cooperative plan by which the respectivecounties of then State may utilize its benefits,nevertheless,it is perfectlyobvious that the county availing itself of such plan necessarily

makes such accepteddenonstratorits own agent and employee,.The language may appropriateand "may employ such means, and
ex end such sums of money as mey be necessaryte effective fy establishand carry on such demonstration

work in agrioultureand home eoonomic$in their respectivecounties, * is the ambit of their povre~. It can make no differencethat the A & M supplies the demonstrators

for such oounty.S8Tvioe, By this legislative plan the State enoouragesthe training of demonstration agents by OUT own Agricultural and MechanicalCollege and assures competentagents throughoutthe State. No reason is'discernible why.the employmentdf the demonstrationagent does not oome within the employment.practioe condemnedby the statute.

OpinionNd, O-4372by a former Attorne'y Genera&, cited by you in your brief, does not involveany $uestion of nepotism. It merely affirms the authority of the'Commissioners'Court of~a county to make continuousannual. appropriations

for compensating

the agent. Nor is~the relation of the county to the demonstratiod agent analogous to the relationbetween then county and an electiveofficer of the county or a precinct,as you suggest, for'in the case of an eleotiveofficer the 'county has no controlling discretion

whatever as to the seleotingor the oompensationof suoh,offioer, whereas, in the present case it had.
This bringsus to the question of whether or not your situation is controlledby the fact that the demonstrationagentwas.the employeeof.the,~oounty prior to her marriage to tpe county commissioner. The ca@e of Fairless
v. The Cameron CountyWater ImprovementDistriot No. 1, 25 S. W. (2a) 651 is informative. It is there said:

"Blakeley,a member of the Board of Directors of the Water ImprovementDistriot,
was the husband of a sister of appellant when he was employed in ~1928, an'd had been
~adirector of such a,istriot &ring four years before that time. The employmentofFfon. D. D. Wllliame - Page 5 (V-785)

appellantwas a plain violationof the Nepotism Law, and he ha8 no oauae to oomplein beoause of his disohargeby the board or dlreotors,who, upon learning that they were aoting oontrary to law, promptly disohergsd him and relieved themselvesof any 

### ohergo of wlliul dieobrdienoeto the law. They oould, end perhaps should,have refused to pay him anything for the month af February in the firet part of whioh he was diecharged.”

This offloa In OpinionMO. O-1408 oited and quoted the Pairless-Oameron oaae in au port ing that where an employeeupon a mont f: of’

Its holdly basis beoam8 lnellglblefor the appointmentunder Article 432, employment after the ‘first OS tha auooeedinglnonth would have been in direot violationor the Penal Cods. The opinion cite8 an earlier opinion, No. O-361,where the employment
was ude et a time when the relationshipdid not exist; thrrefore the employmentat the time was legal, and the ooatraot ror ita term (aohooldletriot eupsrlntendent ) *
wea not mde rold.

It was held during the preamt admlnistration that the eleotion of a,truateeto a board or sohool truatees, who is related to a teaoher of such gohool holding
a valid existing oontraotwith the board, does not make void euoh oontraotunder Artiole 432 of the Penal Code, (Opinion

No. V-184) , Upon these oonsiderations,~ you are advised that the oontraot **by** whloh the County employed the Domonstration Agent is not *de void by her superveningmarriage to one of the ooavaiseioner8; but upon the terrlnationof the period ror whioh she was employed she would be lneligible ror re-employmentif her husband is one of the oommislioner

9.

We heve answeredyour queetions In this mennar beoauaewe are unable to determinefrom your statement whether the agent’8 employment wag for a year or ~~~eraly by the month, terminableat the end of any month by either party. The appropriation by the oourt or a sum surrioient to compensatethe agent for a year does not nsoeeaarily ehow that there was an employmentfor any definitet&m..

Hon. D. D. Williams - Page 0 (V-785)

The employmentby a county of a County Demonstration

Agent in cooperation with the A&M College oomeswithin the provisionof Article 432, Penal Code, forbiddingnepotism. For such employee to marry a member of the Commissioners* Court,would

not operate to make void the existingcontract between the Agent and the county,but it would remain valid to the end of the term of employment. Fairlessv. Cameron County I& provementDistriot, 25 S. W. (26) 651; Attorney General'sOpinionNo. V-184.

Yours very truly,

0S:wb 'ATTORNEYGBMRALOF TEXAS

Assistant